Pan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 55

Pan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 55 (24 January 2024)
Division:GENERAL DIVISION
File Number: 2023/8196
Re:Lingchong Pan
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:24 January 2024
Place:Melbourne

Pursuant to s 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision and, in substitution, decides that the visa cancellation is revoked under s 501CA(4) of the Migration Act 1958 (Cth).
.................................[SGD].......................................
R Cameron, Senior Member
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of
Class BB Subclass 155 Five Year Resident Return visa – substantial criminal record – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction No. 99 – money laundering – protection of the Australian community – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act1995 (Cth)
Financial Transaction Reports Act1988 (Cth)
Migration Act 1958 (Cth)
Cases
DMDD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1993
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
Majeed v The Queen [2013] VSCA 40
R v Jiao (2015) 251 A Crim R 236
Samarakoonv The Queen [2018] VSCA 119
Shi v R [2014] NSWCCA 276
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99: Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (23 January 2023)
REASONS FOR DECISION
R Cameron, Senior Member
24 January 2024
INTRODUCTION

The applicant seeks review of a decision made on 1 November 2023 by a delegate of the respondent not to revoke the mandatory cancellation of the applicant’s Class BB, Subclass 155 Five Year Resident Return visa (‘visa’) made under s 501(3A) of the Migration Act1958 (Cth) (‘Act’) (‘reviewable decision’).
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and viva voce evidence before the Tribunal.
The applicant gave viva voce evidence and was searchingly cross-examined.
Additionally, the following witnesses gave evidence:
(a)Jiahui Huang, the applicant’s partner;
(b)Jiewei Feng;
(c)Antonio Bonacci;
(d)Carla Ferrari;
(e)James Li; and
(f)Chen Chen.
There were the ‘G’ documents, together with an additional tender bundle lodged by the respondent which comprised of documents produced by various parties in compliance with several summonses issued by it (hereinafter referred to as the (‘RTB’).
The applicant also lodged a tender bundle which comprised of the following documents:
(a)Psychological Report prepared by Carla Ferrari dated 8 December 2023;
(b)‘Support Letters’ from the following persons:
(i)Yen Chieh Yeoh;
(ii)Jiawei Feng;
(iii)Jianpeng Zhai;
(iv)James Lei;
(v)Chen Chen;
(vi)Eric Tan;
(vii)Michael Hamilton;
(viii)Antonio Bonacci; and
(ix)Jiahui Huang.
(c)Statement from the applicant dated 28 December 2023.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A)(a) is outlined in s 501(6) of the Act. Relevantly, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under s 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction is Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 99’).
AN OVERVIEW OF DIRECTION 99
It is not necessary to reproduce the entirety of Direction 99. However, it is useful to refer to several of paragraphs of it. The paragraphs containing the primary and the other considerations required to be taken into account by the Tribunal as decision-maker will be reproduced later in these reasons when each of those relevant considerations are examined in more detail.
Paragraph 5.2, ‘Principles’, provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that paragraph are referred to in their entirety for their full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;
(b)the Australian community expects that the Australian government can and should cancel non-citizens’ visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
(c)decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6, ‘Making a decision’, provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraph 8, ‘Primary Considerations’, and paragraph 9 ‘Other considerations’, where relevant to the decision.
Paragraph 7, ‘Taking the relevant considerations into account’, provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
Paragraph 8, ‘Primary considerations’, mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9, ‘Other considerations’, provides in making decisions under s 501(1), 501(2) or 501CA(4), the following considerations must also be taken into account, where relevant, and include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
ISSUES BEFORE THE TRIBUNAL
There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a) of the Act.[2]
[2] Document G2 of the G documents, attachments G H, I, M, N, O, P, Q, R, S, T, U, V, W, X, Y and Z, contain details of the representations made by the applicant to the respondent that were considered by the delegate.
That leaves two issues for determination by the Tribunal:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is ‘another reason’ why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The applicant does not pass the character test. He does not do so, by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a ‘substantial criminal record’, having been sentenced to a term of imprisonment of 12 months or more in the County Court of Victoria on 28 September 2022. Further, in paragraph 3 of his Statement of Facts, Issues and Contentions lodged with the Tribunal on 12 December 2023 it was conceded on his behalf that he does not pass the character test.[3]
[3] A concession to the same effect was also made in paragraph 4 of the applicant's ‘Representations on Revocation of Decision to Cancel Visa’, at page 71 of the G documents. This submission was made to the delegate of the Respondent. Additionally, quite properly in his opening to the Tribunal at the commencement of the hearing of the application, counsel for the applicant repeated the concession.
SOME INITIAL OBSERVATIONS ON THE EVIDENCE OF SEVERAL WITNESSES
The hearing of this application took the better part of two days. Several witnesses gave relatively extensive evidence. It is appropriate, in the circumstances, to make some initial observations concerning the evidence given by some of them.
The applicant gave his evidence in a candid and credible way. The Tribunal did not see him giving his evidence in an embellished or coloured way. Overall, he left the witness box with his credibility intact. He was fairly searchingly and carefully cross-examined. More will be said later about specific aspects of his evidence but overall, the Tribunal accepts what he said.
The applicant’s partner, Ms Huang, also gave evidence. Likewise, she was a witness who did not embellish her evidence or otherwise portray a gloss on it. She was once again, extremely candid and credible. It is quite apparent, that the last six years have been extremely stressful and challenging for her. The stress and uncertainty that she has faced over quite some years whilst the charges against the applicant navigated their way through the legal process, was understandably, added to when her husband was sentenced to prison. On top of all this, about which more will be said later, she has had to look after her son who has certain health and developmental challenges. This has included the period of the applicant’s incarceration and a further period when she took her son to visit her parents in China. COVID-19 travel restrictions imposed after that time added to her difficulties. The applicant was not permitted to leave Australia as a condition of his bail at the time, so could not join them in China.
Ms Ferrari, a Forensic Psychologist, prepared a report on 8 December 2023 after she had conducted a comprehensive assessment of the applicant on 23 November 2023 following a request from his lawyers. Her report was a very detailed one covering many pages. She was an impressive witness. As is required of all expert witnesses she understood her primary function was to assist the Tribunal. Her contribution was of considerable assistance to the Tribunal in addressing the considerations required under Direction 99.
Ms Ferrari expressed the opinion that the applicant is considered to be a low risk of reoffending. She explained why she reached that conclusion after having administered several diagnostic tests to the applicant and by reference to various facts and assumptions, together with various learned articles and empirical professional literature which highlighted risk factors relevant to determining an individual’s propensity for recidivism. Additionally, the Tribunal was impressed with Ms Ferrari’s response to several specific questions that it had asked her about the applicant. Those questions included whether or not his explanation for his offending was genuine and whether it was the version that he gave her. The explanation for his offending appeared not to have been advanced in support of his plea to the sentencing Judge in the County Court of Victoria, and also to another clinical psychologist, Mr Armstrong, who had previously seen the applicant for approximately 8 hours, and prepared three previous reports. Ms Ferrari explained she considered that such explanation was genuine and was not made up, or otherwise of recent origin.
Further, Ms Ferrari gave evidence that she did not believe that any threats that might be made against the applicant by co-offenders or people who believed that he was responsible for losing their money when it was seized by the police would prompt the applicant to reoffend. She considered that he would make the correct decision and seek support of his partner, parents and report the matter to the police. To her credit, she stated that one cannot say with absolute conviction that the applicant would not reoffend. However, she believed he would go to the police and that he has a heightened awareness of doing so by reason of his prior experiences and currently undertaking a Masters of Law whilst in custody. In other words, he has an improved capacity for problem-solving and rational decision-making.
Reference should also be made to the evidence of some of the lay witnesses. Mr Bonacci, a registered drainage contractor and builder who has known the applicant for some years, considers him a friend and was an impressive witness. He presented as a decent hard-working individual. He gave evidence as to the applicant’s enduring qualities as a person, husband and father. He was aware of the details of the applicant’s offending which he considered was out of character for the person he knew. As he said, ‘I would never have picked it in a hundred years’. Mr Bonacci has worked with the applicant on quite a few building projects. He considers the applicant to be a good person whose offending he put down to a one-off lapse of judgement. Clearly, his friendship with the applicant has not in any way been diminished by his familiarity with the applicant’s offending. Mr Bonacci also stated that he considers the applicant has a very bright future with property developments that he intends to undertake.
Finally, another lay witness whose evidence should be referred to, was that of Mr Li. He has conducted an interpreting and translation service in the Chinatown precinct of the Melbourne central business district for many years. He has known the applicant for over 10 years. He did present as what one might describe as an elder statesman of the Chinese community. The Tribunal also found him to be a thoroughly decent witness. He spoke of the enduring qualities of the applicant. In particular, he emphasised that he had asked the applicant to assist with community work for the Chinese New Year celebrations and other related Chinese events on a voluntary basis. He informed the Tribunal that the applicant was always happy to, and did, provide significant assistance. The Tribunal found Mr Li to be a candid witness and a thoroughly decent individual, who is genuinely concerned about the applicant.
Mr Li stated that when he first heard of the applicant’s offending, he was shocked. He considered such offending to be out of character. He considered the offending surprising as he described the applicant, which the Tribunal agrees with, as an educated and highly intelligent man. Mr Li also spoke to the applicant’s enduring qualities as a decent person who is caring, particularly for his young family. Additionally, Mr Li informed the Tribunal that the applicant’s parents are very reputable.
It is apparent from the evidence of Mr Li that he has discussed the applicant’s offending with him frequently and in some depth. Several things emerged from Mr Li’s evidence concerning these discussions. Firstly, he considers that the applicant has reflected on his offending and where he went wrong. Secondly, Mr Li believes that the applicant has learned his lesson, which he described as a very hard lesson for him. Additionally, he considers that the applicant has matured since the offending and would, as he recommended, seek professional help (not to mention help from his partner, family and friends) in the future if it is necessary, both for his mental health needs and if there was any temptation to reoffend lurking in the background. Finally, Mr Li emphasised that the applicant listens to the advice he gives him, which included a stern warning that he is a young man with a long future ahead of him, which he should not again jeopardise. He concluded that it is very unlikely that the applicant would reoffend. He would not do silly things in the future. He believes the applicant deserves a second chance.
Mr Feng is another witness who gave evidence. He is now practising as a lawyer in Queensland and has known the applicant since they were students together at Monash University in the years 2014-15. They were classmates. Until Mr Feng moved to Brisbane, they saw one another regularly. Since then, they speak to one another approximately once a month. Once again, like other lay witnesses, he spoke highly of the applicant’s enduring qualities, both as a friend and also in terms of assistance that he has provided him and his family over many years without hesitation. He described the applicant as of good character.
Mr Feng stated that the applicant informed him of his offending. At the time he was informed by the applicant of his offending, Mr Feng was employed by the Commonwealth Bank. He informed the Tribunal that his reaction was one of anger. He explained that the applicant did express extreme regret for what he had done. Mr Feng gave evidence that he has discussed the applicant’s offending with him many times. His conclusion as a result of those discussions, and his friendship with the applicant over many years, is that he is really trying to change, and he does not think he would reoffend. The Tribunal also found Mr Feng to be a genuine and helpful witness whose evidence was not coloured or embellished in any way.
BACKGROUND AND OFFENDING
The applicant is a citizen of the People's Republic of China. He is presently 36 years of age, having been born in 1987.
The applicant arrived in Australia in 2009 and was the holder of a student visa. Upon his arrival in Australia, he studied English as a second language. Subsequently, he enrolled at Monash University where in 2013 he successfully completed a Bachelor of Commerce majoring in Banking and Finance.

As was to be repeated several times in the future, the applicant, whilst a student at Monash University, in addition to his studies was very industrious. Initially, he worked as a pizza delivery driver. Then he commenced a cleaning business as a franchisee with ‘Fantastic Cleaning’. That business was successful, and he employed four or five people in it. To acquire the Fantastic Cleaning franchise, the applicant had to pay the sum of $15,000. He borrowed this money from his parents. He earned quite a reasonable income from this undertaking. The $15,000 was repaid to his parents. Additionally, he obtained a car loan to purchase a motor vehicle and said that every month he had between $2,000 and $3,000 in spending money. It is quite apparent to the Tribunal as will be evident further in these reasons that the applicant has a very good entrepreneurial skill and business acumen.
On or about the time that he completed his studies at Monash University, he secured full-time employment with a finance company working there until approximately 2016. In that year he commenced his own finance broking business which he conducted through a company that he established ‘Wiky Pty Ltd’. When he commenced his finance broking business the applicant also obtained an Australian Financial Services Licence. He stated in evidence that he is still a holder of the licence. However, once he was charged the licence was suspended. He considers that it is unlikely he will be able to obtain a licence in the future or otherwise have any suspension of such licence lifted.
The applicant commenced a relationship with his partner in December 2015 whilst she was studying a Bachelor of Business at Monash University. They commenced living together in approximately January 2016. In September 2018 a son was born who is now 5 years old.
Another business that the applicant subsequently acquired was that of a money exchange conducted at or near the Pinewood Shopping Centre on Blackburn Road, Mount Waverley. This occurred relatively shortly prior to his offending when he committed the money laundering offences. The applicant said that he loaned one of his co-offenders the sum of $500,000. That co-offender had borrowed money from him previously and repaid it when required with interest. The co-offender, who was also a friend, gambled the $500,000 at the casino and could not repay the applicant. In an endeavour to recoup some of his losses and to be repaid, the friend transferred his interest in the money exchange to the applicant, which he also participated in the running of. Upon completion of that transfer of the business to him, the applicant became a director of the company which was the vehicle through which such business was conducted. More will be said about this later, but the applicant gave evidence to the Tribunal and also informed Ms Ferrari that it was the loss of the $500,000 to his friend that prompted, or perhaps more accurately was the trigger, for his offending.
After he was charged and unable to continue in his finance broking business, the applicant resolved that he had to look for other means of earning a living. At about this time he decided to go into property development. In pursuit of these endeavours, he did several things. He enrolled at the Holmesglen Institute in the course of a Diploma of Construction as a way of obtaining registration as a building practitioner. Due to his incarceration, he has not completed that course and has one more year to go. It is his intention if released into the community to finish the course. Additionally, prior to his incarceration in 2022, he also undertook an exam or test seeking to be registered as a builder with the Victorian Building Authority (‘VBA’). Unfortunately, he was not registered as a builder due to insufficient experience. In particular, the applicant to successfully obtain registration as a building practitioner will have to, amongst other things, complete a house with a basement. Such a basement could include an underground car park. Also, he would be required to have a minimum of three completed projects experience.
Also, the applicant acquired and developed four properties in Mount Waverley, Forest Hill and Clyde North. He described these property developments as a ‘learning curve’. The first three projects the applicant stated he did not earn much money from them because he was learning the pitfalls of the trade. As he said, he ‘paid the price’ for lots of errors and mistakes, and it was not a straightforward pathway. The fourth project he apparently did quite well on. He did not finalise the fourth development, he just procured a planning permit and sold it because he knew he was about to be imprisoned.
On all of these projects he worked with Mr Bonacci. It was apparent, from both the evidence of Mr Bonacci and the applicant, that a collaborative approach was adopted by them with a view to Mr Bonacci teaching the applicant how to do the job. The Tribunal is satisfied that as a result of this collaboration, the applicant has acquired a good working knowledge of how to develop residential lots into units, or demolish and rebuild homes, and resell them. If he is released into the community, more probably than not, he will in the future successfully undertake this endeavour.
Prior to his imprisonment the applicant also established or acquired several other successful business ventures. In no particular order of priority or timing, they will be briefly referred to.
In approximately December 2020 the applicant took over the business and undertaking of a Chinese restaurant in Mulgrave known as ‘Chopstick Delight’. He commenced operating it in January 2021. It will be recalled that this was at the height of the COVID-19 restrictions. It was a significant risk taking over this business at that time. The applicant worked in it every night. However, the Chinese restaurant as conducted and promoted by the applicant, weathered the COVID-19 storm and is now highly successful. It is open five days a week with two sittings per evening. Its success is a testament to the applicant’s entrepreneurial skills, not to mention business acumen and hard work. The applicant gave evidence that if he is released into the community, it is his intention to continue working in the restaurant as he did for some years prior to his imprisonment.
Another business endeavour that the applicant stated he commenced after he was charged was that of a licensed motor car dealer. It is evident from the material, and he informed the Tribunal, that he obtained a motor car trader’s licence from VicRoads and commenced a business selling second-hand cars from a warehouse on Springvale Road, Springvale. Whilst he is not completely certain, it is an endeavour that he may wish to undertake in the future. It is yet again, a further example of the applicant’s entrepreneurial skill and business acumen that he was prepared to start such a business when he was in a state of significant suspense due to the pending criminal proceedings. One has to give him credit for these endeavours in the circumstances. Many people confronted with the problems that the applicant faced between being charged in 2017 and those charges finally being disposed of in 2022 would have found it very difficult to do anything as, naturally and understandably, having criminal charges of that gravity hanging over one’s head would not be conducive to starting new businesses as he did.
The applicant has a fairly limited history of offending.
The first offence committed by the applicant was addressed in the Melbourne Magistrates’ Court on 14 March 2018 where he was found to have possessed a controlled weapon without a lawful excuse. The controlled weapon was a collapsible baton of a similar style to those issued to police officers. Sometimes in layman’s terms referred to as a ‘cosh’. No conviction was recorded, and the matter was adjourned for three months with an order that he make a payment of $250 to a charity.
There was a charge of making a false or misleading statement which had not been addressed at the time the national criminal history check report was produced. The applicant, in his Statement of Facts, Issues and Contentions, stated that this offence was found proven and without conviction he was fined $2000.[4] The applicant, in his evidence, stated that he completed an application for a liquor licence and failed to disclose that he was facing the money laundering charges. He used a lawyer to complete the form and did not tell him about the pending charges. The applicant stated that he did not read the form properly. He pleaded guilty to the charge. It is a serious matter, and it does weigh against the applicant. Overall, in the scheme of things the Tribunal considers that it is offending that attracts considerably less weight when compared to the other offending for which he was sentenced in the County Court of Victoria on 28 September 2022.
[4] Paragraph 29 of the applicant's Statement of Facts, Issues and Contentions is referred to.
The matters for which the applicant was sentenced to a term of imprisonment which led to the mandatory cancellation of his visa arose from convictions in the County Court of Victoria on 28 September 2022. The applicant pleaded guilty to three charges of dealing with money of more than $100,000 reasonably suspected of being the proceeds of crime in contravention of s 400.9(1) of the Criminal Code Act1995 (Cth). The reasons for sentence of the trial Judge were in evidence before the Tribunal and give a useful summary of the facts and circumstances relating to the applicant’s offending. Details from those reasons for sentence are largely reproduced hereunder.
The first charge to which the applicant pleaded guilty, related to him between 24 May 2017 5 July 2017, and three separate dealings with a co-offender, collecting and disposing of $2,240,000 (‘charge one’).
The second charge, to which the applicant pleaded guilty, related to him between 31 May 2017 and 20 July 2017, collecting and disposing of $1,090,000 in cash in three separate dealings (‘charge two’).
The third charge, to which the applicant pleaded guilty, related to him between 10 June 2017 and 23 June 2017, arranging for a co-offender to collect $1,934,300 in three separate dealings (‘charge three’).
Between those relevant dates the applicant, on no less than nine separate occasions, in Sydney, collected amounts of cash either on his own, or jointly with a co-accused, or by procuring his co-accused to collect such cash amounting to the sum of $5,264,300. Upon collection of the cash, it was then taken by the applicant and/or his co-accused to Melbourne and distributed to others.
The individual amounts that were collected by the applicant and/or his co-accused ranged from $220,000-$1,214,300. They were both individually and collectively significant sums of cash.
The sentencing Judge described the applicant as, in effect, a money remitter in Australia, for an international money laundering syndicate. The syndicate used what is described as the ‘Hawala method’ to secretly move substantial sums of money internationally. The essential feature of this system or methodology is that currency in different countries is in effect moved internationally without any currency transfers, either physically or electronically, taking place between those countries. Put another way, as described by the sentencing Judge, it is a money transfer without money movement.
It was also recorded by the sentencing Judge that because the money was moved in cash, the reporting requirements of the Financial Transaction Reports Act1988 (Cth) were avoided.
The effect of the applicant’s guilty plea was also recorded by the sentencing Judge as an acceptance by him that it was reasonable to suspect that the money he dealt with, which were considerable sums of cash involving a covert method of movement, were the proceeds of indictable crime.[5]
[5] Reference was made by the sentencing Judge to the decision of the Victorian Supreme Court of Appeal in Samarakoonv The Queen [2018] VSCA 119, 7 [27].
The first dealing by the applicant contained in charge one occurred on 23 May 2017. The applicant was present with another member of the money laundering syndicate at the Star Casino in Sydney when he deposited cash into his funds on deposit (‘FOD’) account. The following day he withdrew $640,000 in cash from that account, and upon withdrawal divided it into two bags. One of those bags was given by him to the applicant. They then flew to Melbourne together with the two bags of cash. In Melbourne the applicant disbursed $450,000 of those funds to others. The sentencing Judge described the applicant’s crime on that occasion as being the joint possession, with the other member of the money laundering syndicate, of $640,000 which was then dispersed.
The second dealing by the applicant contained in charge one occurred on 29 June 2017. On that day, in company with a co-accused, he flew from Melbourne to Sydney. He then took a taxi to a Sydney address and collected a sports bag containing $900,000 from an unidentified individual. The applicant and his co-accused then took a return flight to Melbourne carrying the $900,000 in cash between them. Upon arrival in Melbourne the applicant disbursed $850,000 of such cash to five individuals. His crime with respect to the events of that day was that of joint possession, with his co-accused, of $900,000 which he then dispersed in Melbourne.
The third dealing by the applicant contained in charge one occurred on 5 July 2017. Once again, the applicant took a flight from Melbourne to Sydney. Upon arrival in Sydney, in company, they took a taxi to an address in a Sydney suburb. He collected $700,000 in cash from another unidentified individual. Immediately, they took a return taxi to Sydney aerodrome and boarded a return flight to Melbourne carrying the cash, in various bags, between them. Upon his return to Melbourne the applicant then dispersed $650,000 from the cash he had collected in Sydney to various persons. His crime with respect to the events of that day was the joint possession, with his co-accused, of $700,000 which he then dispersed.
The first dealing by the applicant contained in charge two occurred on 31 May 2017. The applicant flew to Sydney from Melbourne on that day. That evening he deposited $250,000 cash into his Star Casino account. Present with him was the other member of the money laundering syndicate who was also with him on 23 May 2017 as described previously. That other member of the money laundering syndicate on that evening also made cash deposits into his Star Casino account. Later on, in the same evening, the other member of the money laundering syndicate present at the Casino with the applicant withdrew $419,020 in cash. After having done so, the applicant then took a return flight to Melbourne with cash including the $250,000 he had deposited into his Star Casino account earlier on the same day. When in Melbourne the applicant then ‘offloaded’ the $250,000, and the next day, then flew to Shanghai. The applicant’s crime with respect to this dealing was stated by the sentencing Judge in his reasons to be the receipt and disposal of the sum of $250,000.
The second dealing by the applicant contained in charge two occurred on 17 July 2017. Earlier on that day the applicant had several telephone conversations with a man known as ‘Ken’. Ken arranged to supply the applicant with $340,000 in cash as part of an ongoing arrangement for which he would receive 0.5% commission. Apparently, the applicant commented that such a commission rate was low. Nonetheless, following these conversations with Ken the applicant then flew to Sydney later that afternoon carrying a duffel bag. At approximately 6.30 pm that evening the applicant met Ken at the Sydney airport terminal. They then entered a toilet cubicle whereupon Ken gave the applicant $340,000 in cash. By 7.37 pm the applicant then took a return flight from Sydney to Melbourne with the cash. Upon his arrival in Melbourne, he then dispersed at least some of those funds. The applicant’s crime was described by the sentencing Judge as the receipt and disposal of the amount of $340,000.
The third dealing by the applicant contained in charge two occurred on 20 July 2017. On that day he flew with his co-accused from Melbourne to Sydney taking with him a duffel bag and a suitcase. Upon arrival at Sydney at approximately 8.00 pm the applicant and his co-accused hired a car and drove to industrial premises in a Sydney suburb. Upon arrival there, the applicant collected a quantity of cash and immediately drove back to the aerodrome. At approximately 10.00 pm the applicant boarded a return flight to Melbourne in possession of the duffel bag packed with cash. The New South Wales police arrested the applicant’s co-accused at Sydney airport prior to him boarding the aircraft. He was found to be carrying $579,150 in cash. The applicant’s crime on that day was said by the trial Judge to be the receipt of approximately $400,000, up to $500,000, in cash.
The first dealing by the applicant contained in charge three occurred on 10 June 2017. Whilst the applicant was present in China, he was a member of a ‘WeChat’ group which comprised of several members. Amongst those members was his co-accused who has been referred to previously, an individual described as his Malaysian based ‘big boss’, known as ‘SuperLen’ or ‘brother Tien’. It appears that following a discussion of some sort that took place over that WeChat group, the applicant directed his co-accused to fly to Sydney which he did and collected $500,000 after he arrived there. He immediately returned to Melbourne with the money. The applicant also instructed his co-accused to retain $25,000 of that sum for ‘fees and expenses’ with a further direction to disburse the balance to unnamed persons in Melbourne. The applicant’s crime was said to be to procure his co-accused to collect and disburse the sum of $500,000.
The second dealing by the applicant contained in charge three occurred on 18 June 2017. On that occasion the applicant instructed his co-accused to collect $1,214,300 from an address at Eltham in Victoria. Further instructions were given by the applicant to his co-accused to disburse those monies when collected to other unnamed persons. The sentencing Judge observed that a series of phone conversations intercepted from his phone indicated that there was to be a 5% gross commission for the operations. The applicant’s crime was said to be procuring his co-accused to collect and disburse the sum of $1,214,300.
The third dealing by the applicant contained in charge three occurred on 22 June 2017. On that day the applicant arranged for his co-accused to collect $220,000 from an address in Templestowe, Victoria the next day. The applicant’s crime was said to be procuring his co-accused to collect the sum of $220,000.
The applicant was arrested on 6 December 2017 when the police executed a search warrant at his home. Several items were seized including a cash counter, $55,100 in cash, four Crown Casino gaming chips and the keys to a Porsche and a BMW motor vehicle.
He was then taken to West Melbourne police station and a tape-recorded interview conducted. In that interview the applicant generally denied any involvement or criminality in relation to the allegations put to him.
The applicant was charged. It took quite some years for the process to take its course. A plea hearing was held on 5 August 2022 before a judge of the County Court of Victoria, and he was sentenced on 28 September 2022.
Upon completion of his sentence the applicant was taken into immigration detention.
PRIMARY CONSIDERATION 8.1 OF DIRECTION 99 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1.1 of Direction 99 – The nature and seriousness of the applicant’s conduct
Paragraphs 8.1.1(1)(a) and (b) of Direction 99 enumerate several types of crimes or conduct that may be considered as very serious or serious, as the case may be, which a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph are not exclusive. Quite correctly, the applicant contends, and the Tribunal agrees that the applicant’s offending does not fall within any of the categories identified in those paragraphs of Direction 99.[6]
[6] See paragraph 32 of the applicant's Statement of Facts, Issues and Contentions dated 12 December 2023.

The sentencing Judge, applying several authorities, held that money laundering is a serious offence and general deterrence is important.[7]
[7] R v Jiao (2015) 251 A Crim R 236, 249 [66]; Samarakoon v The Queen [2018] VSCA 119, 22 [88].
Additionally, Direction 99 also provides in considering the nature and seriousness of the non-citizen’s criminal offending, decision-makers must have regard to the following additional matters:
(a) The sentence imposed by the courts for a crime or crimes;[8]
(b) The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;[9] and
(c) The cumulative effect of repeated offending.[10]
[8] Paragraph 8.1.1(c) of Direction 99.
[9] Paragraph 8.1.1(d) of Direction 99.
[10] Paragraph 8.1.1(e) of Direction 99.
Both the applicant and the respondent, in various ways when addressing this primary consideration, emphasised both the observations of the sentencing Judge and the actual sentence that he imposed upon the applicant. The applicant also contended that the Tribunal should not ‘go above’, or perhaps described differently, reach another conclusion with respect to the objective seriousness of the applicant’s offending as found by the sentencing Judge. In support of this contention the applicant submitted that criminal courts are arguably well-placed to assess such matters, given their specialisation in criminal conduct and sentencing. Whilst one can fully appreciate the logic of this submission, the Tribunal is carrying out a different function in applying Direction 99 than that of a criminal court and further, it does not consider that it is unable to reach a different conclusion about the objective seriousness of a party’s offending where an appropriate evidentiary foundation or platform has been established before it which justifies reaching such conclusion.
Both parties understandably, referred the Tribunal to a passage of the sentencing Judge’s reasons where he assessed ‘the objective seriousness of the applicant’s offending to be above mid-range.’[11]
[11] Paragraph 77 of the sentencing Judge’s reasons.
The applicant then contended that in the light of these observations, or perhaps more accurately the assessment, made by the sentencing Judge of the applicant’s offending, the Tribunal should find that the offences were at most only slightly mid-range in terms of objective seriousness. In support of this submission the applicant relied upon the fact that the applicant was not sentenced on the basis of having any knowledge as to whether or not the money he was transferring was actually the proceeds of crime.[12] Further, the actual sentence imposed upon the applicant, it was contended, fell well below the maximum possible penalties available to the court. It was also contended that the applicant was motivated by the need to recover his significant financial loss suffered as a result of the co-accused’s gambling losses, which paint the picture of a more desperate, as opposed to greedy, motivation.
[12] As observed by the sentencing Judge at paragraph 76 of the sentencing Judge’s reasons, applying Samarakoonv The Queen [2018] VSCA 119, 17 [66].
Whilst acknowledging the force of the applicant’s contentions in submitting that the offences were at most only slightly mid-range in terms of objectives seriousness, the Tribunal cannot agree. There are several reasons for reaching this conclusion.
On several occasions in his evidence the applicant readily conceded that his offending was serious. His counsel also made such a concession. On one occasion in response to a question put to him by his counsel, he stated, ‘I know it is a very serious offence. I feel regret for this one.’
The contention that the applicant was motivated by desperation rather than greed was also not borne out by the applicant’s evidence in the witness box. To the applicant’s credit, when he was asked a question about how he felt when he looked back at his offending, his response was, ‘I was young, I was greedy, I wanted to make more money.’ This candid admission by the applicant, when observed by the Tribunal, was a significant acknowledgement of what truly motivated him in offending as he did, but also most importantly for the purposes of this application, a genuine reflection of the insight that the applicant has gained into such offending. It was a quality of his evidence that was quite persuasive. It is common for applicants, in the position of this applicant, to seek to downplay the gravity of their offending, or as it is sometimes described, ‘gild the lily’ in an endeavour to portray their offending in some different, less serious light. Ultimately, in his evidence to the Tribunal, the applicant did not do so.
The offence created by s 400.9 of the Criminal Code Act 1995 (Cth) falls, as was observed by the sentencing Judge, at the lowest end of the scale of the money laundering offences created by div 400 of that Code.[13] It is an offence to which absolute liability applies with respect to the elements contained in paragraphs 1(b) and (c) (s 400.9(4)). As has been observed both by the sentencing Judge and several other courts, for an offence under s 400.9, there is a no-fault element and hence no requirement to prove any knowledge or belief on the part of the accused that the money was the proceeds of crime.[14] It has been said that on any view of such legislation, s 400.9 is a very serious offence involving a departure from the common law concept of offending because there is no element of mens rea.[15]
[13] See reasons for sentence of the sentencing Judge at paragraph 63 on page 53 of the G documents.
[14] See, eg, R v Jiao (2015) 251 A Crim R 236, 240 [20]. See also Shi v R [2014] NSWCCA 276, 19 [42].
[15] R v Jiao (2015) 251 A Crim R 236, 241 [26].
As was readily acknowledged by all parties, the maximum penalty for each of these charges was a term of imprisonment for 3 years or 180 penalty units or both. This is a significant penalty. It reflects the seriousness that the legislature, representing the people of Australia, places on such a crime. The applicant was convicted of three offences under s 400.9(1) of the Criminal Code Act1995 (Cth) concerning nine separate dealings of large sums of cash. This subsection is contained in ch 10 of pt 10.2 of div 400 of that Code.
In several decisions of State Courts of Appeal, some observations have been made with respect to the nature and seriousness of the crime of money laundering, together with the purpose of the money laundering provisions of the Code and ‘the mischief to which they are directed’. It is worthwhile referring to some of these observations in a consideration of the seriousness of the applicant’s offending in this case.
In Majeed v The Queen, a decision of the Victorian Court of Appeal,[16] Kaye AJA stated with respect to money laundering:
Fourthly, money laundering, particularly of the nature and scale involved in this case, is vital to the functioning of organised criminal syndicates, and in particular drug-trafficking syndicates. In such cases, it is a necessary part of the criminal activities of those syndicates, and the money laundering is an important cog in the wheel of organised crime. Accordingly, the offence of money laundering, particularly of the type and dimension which was involved in this case, is an offence in respect of which the principle of general deterrence is given significant weight. In R v Huang, R v Siu, the New South Wales Court of Criminal Appeal, consisting of Simpson, Howie and Hislop JJ stated:
Money-laundering on the scale in which both respondents were involved should be considered as serious criminal activity that is at the very heart of organised, professional crime syndicates. It warrants severe punishment not the least in order to reflect general deterrence of a very significant degree. When the activity is engaged in for profit, over a significant period of time and with a large number of transactions, the good character of the offender is of less significance than might otherwise be the case.[17]
[16] [2013] VSCA 40, [39]. In that case the accused was involved in a sophisticated money laundering scheme which engaged in 12 transactions totalling $5.2 million over a five-year period. It should also be noted that the defendant in that case was charged under s 400.3(2) of the Commonwealth Criminal Code.
[17] Quoting R v Huang, R v Siu [2007[ NSWCCA 259, 174 A Crim R 370, [36].
In a decision of the Supreme Court of New South Wales, Court of Criminal Appeal in R v Jiao, in joint reasons of Ward JA, Johnson and Schmidt JJ, several further observations were made concerning the operation of pt 10.2 of div 400 of the Criminal Code Act 1995 (Cth). They recorded as follows:
[29] More generally, this court in Milne v R [2012] NSWCA 24; 259 FLR 42 (at [134]) adopted the following observations of Johnson J in his pre-trial decision of 19 August 2010 (R v Milne (No 1) [2010] NSWSC 932; 260 FLR 166 at [161]-[164]):
[161] When provisions such as the money laundering offences contained in section 400 Criminal Code Act 1995 are enacted, is clear that care must be exercised by a prosecutor in their use. As the authorities to which I have referred make clear, the money laundering provisions are broad with a capacity to extend to a wide range of circumstances. By their nature, they are likely to be intertwined with other criminal conduct.
[162] By the enactment of these provisions, the Commonwealth has determined that criminal offences of this type are necessary to deal with the wide range of conduct which has manifested itself in contemporary society, with consequences adverse to the public interest including the revenue.
…
[164] At a Commonwealth level, the money laundering offences in section 400 constitute a 21^st century response to antisocial and criminal conduct commonly with international elements.
Their Honours also recorded further with respect to money laundering offences created in pt 10.2 of div 400:
[31] What is clear from Shi v R and other authorities referred to above is that money laundering offences are regarded as very serious offences in respect of which the need for general deterrence is of particular significance. In the present case, his Honour accepted that general deterrence was an important factor to take into account ([12]).
[32] In passing sentence for a s 400.9(1) offence, the sentence or order ought to be of a severity appropriate in all the circumstances of the offence (s 16A(1) Crimes Act 1914 (Cth)), taking into account, insofar as is known to the court, the nature and circumstances of the offence (s 16A(2)(a))”
On each of the charges the applicant was sentenced to 22 months imprisonment with a total effective sentence of 2 years and 6 months. The applicant was directed to serve a period of 1 year and 3 months when he was to be released on a reconnaissance release order. It is a significant term of imprisonment. Such a term is more than half of the maximum penalty. As the sentencing Judge noted, a sentence of imprisonment was the only appropriate sentence in the applicant’s case. His highly experienced counsel did not argue otherwise. A term of imprisonment, as is frequently observed in decisions of this Tribunal, and was contended for by the respondent, is considered the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offences involved.
There are several other relevant facts that emerge from the material in evidence before the Tribunal which further demonstrate the very serious nature of the applicant’s offending. Several authorities have held that although it is important to assess precisely what the accused did in the commission of the offence, the structure and purpose of div 400 of Criminal Code Act1995 (Cth) is said to clearly support the proposition that the value of the proceeds of crime will be a paramount consideration in assessing the objective seriousness of the offence.[18]
[18] Samarakoonv The Queen [2018] VSCA 119, 16 [68]; R v Jiao (2015) 251 A Crim R 236, 246 [66].
As has been noted above in the section headed ‘Background and Offending’ the amount of money involved in the applicant’s offending is $5,264,300 in cash. It is, on any objective consideration of the facts, an extraordinarily large amount of money, particularly given that it was in cash. It is more probable than not that such funds were what is sometimes known as ‘black money’ and no tax was paid on it arising from the income earning activities from which it was derived. Although there were nine separate dealings that the applicant pleaded guilty to being involved in, on each occasion that such dealings were undertaken, there were significant sums of cash involved. The Victorian Court of Appeal considered, in Samarakoonv The Queen, that ‘[t]here was no error in the [trial] judge describing the size of the payment involved as “the most significant objective fact” that informed the gravity of [the charge].’[19] It is indeed apposite in this case. The sentencing Judge recorded that the applicant knew exactly how much money he was dealing with. The very large amount of cash involved, over it will be recalled a comparatively short period of time between 24 May 2017 and 20 July 2017, reflects the very serious nature of the applicant’s offending and why it cannot be accepted, as the applicant contends, that the offences were, at most, only slightly ‘mid-range in terms of objective seriousness’.
[19] Samarakoonv The Queen [2018] VSCA 119, 16 [68].
Another consideration that should be borne in mind concerning the nature and seriousness of the applicant’s offending in the context of the structure and purpose of div 400 of Criminal Code Act 1995 (Cth) arises from the fact that, with respect to each of the three convictions, the amount of money involved, once again cash, vastly exceeded the $100,000 statutory threshold prescribed by s 400.9(1) of that Code in each instance.[20]
[20] Paragraph 70 of the sentencing Judge’s reasons.
There are facts other than the value of the sums of money concerned that also emphasise the nature and seriousness of the applicant’s offending. Each of the dealings concerned were part of an international money laundering scheme that enabled the overseas transfer of large sums of money to be effected anonymously without detection by law enforcement agencies. It should be recalled that:
(a)each of the dealings were coordinated with an international money laundering syndicate; and
(b)the syndicate chose not to use the banking system to help secure its handling of the vast amounts of cash concerned.
One has to ask why the participants in the scheme wished to avoid detection by law enforcement agencies, let alone taxation authorities? It seems inconceivable, having had the opportunity to observe the applicant in the witness box, that these questions did not occur to him. He clearly became a participant in these events with his eyes wide open. As previously observed, he successfully completed a Bachelor of Commerce in Banking and Finance. It was quite apparent to the Tribunal, from observing him in the witness box, that he is a well-educated and intelligent man, with significant business acumen and experience, who is very alive to working out right from wrong and very much alive to protecting his own interests, both personal and business.
Further, in terms of the nature and seriousness of the applicant’s offending, the elements of the offence created by s 400.9(1) of the Criminal Code Act1995 (Cth) include that it was reasonable to suspect that the money was the proceeds of crime. In the ‘Prosecution Opening Upon Plea’ several facts were relied upon by the prosecution which it contended, taken in combination, gave rise to a reasonable suspicion in the relevant sense.[21] These facts were not disputed by the applicant at the plea hearing before the sentencing Judge where the applicant was represented by experienced senior counsel. Those facts are:
(a)The use of the Hawala method.
(b)The quantum of money dealt with by the offender on each occasion.
(c)Moving money through casino accounts before transporting it to Melbourne.
(d)The offender requesting that the Star Casino not contact police upon the discovery by a Casino employee of a counterfeit note.
(e)Dividing the money into separate bags – one carried by the offender and one carried by another person – for the purpose of clearing airport security.
(f)The offender’s use of the word ‘launder’ when he offered to supply cash to a client known as ‘Terry’ in exchange for a deposit by Terry of foreign currency into an overseas bank account.
(g)The offender and one of his clients expressed concern about: (i) their transactions would be detected by law enforcement authorities; and (ii) the associated risk that the money would be confiscated.
(h)On one occasion, the offender asked a client whether the money was from cigarettes or something else. The client told the offender that he did not normally ask.
[21] The ‘Prosecution Opening Upon Plea’ is amongst the documents summoned from the County Court of Victoria. The relevant passage is contained at paragraph C.5.
The sentencing Judge, also in undertaking an assessment of the applicant’s culpability identified, as a relevant factor, that as applicant was the recipient of a personal benefit, it was obvious that he committed the crimes for a profit and there was evidence that he was receiving a commission of 0.5% for the transactions.
The sentencing Judge also observed there was a degree of sophistication to the applicant’s offending. It is apparent from the material before the Tribunal that there was also a significant element of planning with respect to each of the dealings concerned. There was evidence before the Tribunal that in the dealing on 19 June 2017 involving the sum of $1,214,300 and a further dealing on 23 June 2017 involving the sum of $220,000, the use of what is described as ‘Tokens’ was adopted. In the ‘Prosecution Opening Upon Plea’, which was before the sentencing Judge, the use of tokens was explained.
Tokens are frequently used as a means of further security when the Hawala system is adopted to undertake money laundering by way of cash transactions. They are apparently intended to replace some of the security that is lost when parties handle money in the way described without banking it. A particular token, or form of token, is used which contains a unique identifying number, commonly the serial number of a banknote from a reputable trading nation such as Australia. It is said to provide a passcode for the subject transaction. It is a simple but comparatively failsafe methodology where the first party to the transaction receives the token from the Hawala agent to whom they deliver the money; the second party would be required to provide the token to the other agent in order to receive the money.
Further elements of the sophistication of the applicant’s offending identified by the sentencing Judge included that there were nine large cash transactions, that involved interstate travel at short notice, over a period of nearly 2 months which only came to an end because of police intervention. There are other elements of the planning or sophistication of the scheme that should also be referred to. The use of the WeChat medium to communicate with the ‘big boss’ known as ‘Super Len’ or ‘brother Tien’ was more likely than not to reduce the potential for exposure to law enforcement scrutiny.
As for the frequency of the applicant’s offending, as previously observed, the Tribunal considers that the applicant has a fairly limited criminal history. His convictions under s 400.9(1) of the Code are clearly the most serious. That offending occurred over a relatively short time frame and clearly came to an end as a result of the police investigations and subsequent arrest of the applicant. Therefore, concerning this aspect of primary consideration 8.1.1, the Tribunal does not place any weight upon it.

As to the question of whether there is any trend of increasing seriousness of offending, the applicant did not address this question. The respondent briefly did so. The respondent contended that the applicant’s offending involves an increasing trend of seriousness, namely, from driving offences to dealing with suspected proceeds of crime. There is some force in this contention as the crimes for which the applicant was imprisoned are very serious. That is reflected in the penalty provided for in the Code, and of course the term of imprisonment to which the applicant was sentenced. Significant weight must be placed upon this fact.
There is also the question of the cumulative effect of repeated offending which is another factor that the Tribunal must have regard to. The applicant did not make any submissions concerning this factor. The respondent submitted that the cumulative effect of the applicant’s repeated offending was that he has burdened the resources of the police, the court system and corrective services.[22] Certainly, with respect to the money laundering offences for which the applicant was convicted, it is apparent from the material before the Tribunal that significant policing resources were devoted to the investigation and apprehension of the applicant.
[22] The respondent referred the Tribunal to the decision of Senior Member Evans-Bonner of this Tribunal in DMDD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1993, 22 [67].
There were some unique features of the matter given the applicant’s involvement with parties both overseas and interstate.[23] The investigation involved at least two law enforcement agencies, namely the New South Wales and Victorian police forces and required New South Wales detectives from the Organised Crime Squad, to travel to Melbourne. They were present at the applicant’s arrest and subsequently participated in an interview of him at a Melbourne police station. Over sometime during the period of the alleged offending, including, with respect to the arrest of his co-offender at Sydney airport on 20 July 2017, it was apparent that significant police resources were devoted to placing him and his co-offender under surveillance both physically (including the taking of photographs and video footage) and by electronic means such as telephone interceptions.
[23] Some details of the investigation undertaken by the police of the offending engaged in by the applicant and his co-accused are contained in a ‘Notice of Pre-Trial Admissions’ dated 10 July 2020 that was included in documents summoned from the County Court of Victoria which was in evidence before the Tribunal.
Additionally, there were significant evidence gathering exercises undertaken by the police including obtaining CCTV footage from numerous venues, including casinos and aerodromes, together with an array of business records from several parties including multiple banks, the Australian Taxation Office, airlines, casinos and telecommunications companies. Significant policing resources were also devoted to translating intercepted telephone calls and the contents of communications made by WeChat in foreign languages. Search warrants were obtained and executed. There was in evidence before the Tribunal a list of prosecution witnesses who it was proposed to call in the event that there was a trial. It comprises 42 witnesses including 5 Covert Operatives. No doubt statements would have been collected from them by police. It clearly was a significant policing operation requiring the application of significant resources. This is not to mention the application of policing resources to the other matters for which the applicant was prosecuted or proceeded against. Accordingly, given these facts the Tribunal finds that there has been a cumulative effect of the applicant’s repeated offending as contended for by the respondent.
Another matter should be addressed when taking into account the nature and seriousness of the applicant’s criminal offending. With respect to this primary consideration, the applicant contended that he had gained further insight into the circumstances and causal factors relating to his offending. In support of this contention, specific reference was made to several paragraphs of the Psychological Report prepared by Ms Ferrari on 8 December 2023.[24]
[24] Specifically paragraphs 75 to 79 of that report were referred to. See paragraph 25 of the applicant's Statement of Facts, Issues and Contentions of 12 December 2023.
In those paragraphs of her report which are prefaced by the heading ‘Response to Offences’, Ms Ferrari outlines an explanation or background to the commission of the applicant’s money laundering offences. He informed her that he became entangled in the money laundering offending when a co-accused borrowed $500,000 from him, purportedly for business purposes, but lost the entire amount at the casino. Previously, the applicant informed her he had loaned his co-accused smaller sums, but they were repaid in full, with interest. He erroneously believed that his co-accused, seemingly a successful businessman, would be able to repay him the $500,000 and therefore had no concerns about loaning him such sum.
Apparently, following the co-accused’s loss of $500,000 at the casino, he transferred an interest he had in a business to the applicant. He admitted accompanying the co-accused to the casino on several occasions after learning of his gambling problem, so as to ensure that any gambling wins received by his co-accused were accounted for and repaid to the applicant immediately.
The applicant further stated to Ms Ferrari that he struggled with the financial loss of $500,000 and decided not to disclose the situation to his parents who had provided him financial support with respect to his migration to Australia and subsequent establishment of his own business. This, he suggested, did play on his mind.
Ms Ferrari further recorded that the applicant acknowledged that his offending was driven, and motivated by, the need to recover his financial loss of the $500,000 and that he acted by engaging in his criminal conduct without fully considering the associated risks.
There are several observations that should be made concerning this explanation furnished by the applicant to Ms Ferrari for his money laundering offending.
This explanation was not provided to the sentencing Judge. It should be recorded that the applicant, for the purposes of the plea hearing before the sentencing Judge, was represented by one of Melbourne’s leading Senior Counsel. He made comprehensive written and oral submissions to the sentencing Judge. Those submissions were summarised in the sentencing Judge’s reasons at paragraphs 53 to 55. Nowhere in those submissions did such an explanation for the applicant’s offending appear. It seems remarkable that, if this is the case, it was not raised with the sentencing Judge, if not in mitigation of penalty, at least as a rational explanation for his offending.
Further with respect to the explanation given to Ms Ferrari for his offending, there is another aspect to it which is puzzling and arises in the context of the applicant’s plea before the sentencing Judge. Also tendered in evidence before the sentencing Judge was a report dated 28 March 2022 from Luke Armstrong, a Consulting Psychologist. That report was prepared at the request of the solicitors then acting for the applicant in the criminal proceedings brought against him for money laundering. An analysis of that report reveals that the applicant participated in a 4-hour semi structured clinical interview with Mr Armstrong. The report prepared by him contains a section headed ‘Circumstances of Offending’. Nowhere in that report, or that section of the report, is there any reference to the explanation for his offending that he subsequently gave to Ms Ferrari when she conducted her assessment of the applicant on 23 November 2023. Once again, it is puzzling that if this explanation for the applicant’s offending was provided to Mr Armstrong when he saw the applicant in March 2022 in anticipation of the forthcoming plea hearing, that reference was not made to such explanation in his report of 28 March 2022.
Further, Mr Armstrong prepared an additional report of 27 June 2023 at the request of the applicant’s lawyers. Significantly, that report was compiled after Mr Armstrong undertook a face-to-face assessment with the applicant on 8 June 2023 for 2 hours on site at the Middleton Correctional Facility. He conducted a further assessment by video link with the applicant on 27 June 2023 for an additional hour. Mr Armstrong stated in that report that he also corroborated the applicant’s personal circumstances with his partner on 22 June 2023 by way of a telephone interview. Finally, he stated that the total time spent in an assessment with the applicant relating to his past criminal and current matters equated to 8 hours. It is again puzzling that given this level of interaction with Mr Armstrong that the explanation now proffered by the applicant about his offending did not see the light of day.
Additionally, the applicant completed a ‘Personal Circumstances Form’ in support of his request for revocation of the mandatory cancellation of the visa.[25] Part 10 of that form requests the applicant to outline any factors he believed helped explained his offending, that he wished the decision-maker to take into account. No explanation in the form he provided to Ms Ferrari was included. Similarly, the applicant’s lawyers on 31 March 2023 and 30 June 2023 made written representations in writing to the delegate in considerable detail.[26] Likewise, no such explanation in the form provided to Ms Ferrari was included in those representations, which is puzzling.
[25] The Personal Circumstances Form lodged by the applicant with the delegate is ‘Attachment I’ to document G2 in the G documents.
[26] The written representations made by the applicant's lawyer to the delegate on 31 March 2023 and 30 June 2023 form part of ‘Attachment G’ to document G2 in the G documents.
These omissions to furnish this recent explanation for his offending on the part of the applicant were put to him by the Tribunal in questions. The applicant said, on oath, that he gave this explanation both to Mr Armstrong and his Senior Counsel Mr Dunn. He also stated that he did not see Mr Armstrong’s report that was prepared for the plea hearing until he went to court for such hearing.
Having had the opportunity to observe the applicant in the witness box and also hear the evidence of Ms Ferrari on this topic, the Tribunal is prepared to accept that such an explanation for the applicant’s offending is not of recent origin. It should be repeated that the Tribunal does find the failure of this explanation to see the light of day until Ms Ferrari’s report extremely puzzling. However, when probed by the Tribunal about her assessment of the applicant’s reliability as a historian, or perhaps in terms of giving her his instructions about what happened, she considered based upon her professional experience and judgement that he was being candid with her. She stated that usually an experienced psychologist can fairly quickly establish whether a patient is a reliable historian. Once again, as observed earlier, the Tribunal found Ms Ferrari to be an impressive witness and by reason of her expressing this professional opinion about the applicant’s reliability, it is prepared to accept that, firstly, this was a reason for his offending. Secondly, the Tribunal is prepared to accept that it is not of recent origin and that he did inform other professionals retained by him to prepare his defence for the plea hearing in the County Court, of this version of the events from time to time.
Having considered all of the material before it and by reason of the matters referred to above, the Tribunal considers that the applicant’s offending is very serious and significant weight must be attached to this primary consideration against revocation of the mandatory cancellation of the visa.
Paragraph 8.1.2 of Direction 99 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 99 relevantly provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm caused if the applicant were to engage in further criminal conduct
With respect to the nature of the harm to individuals or the Australian community should the applicant reoffend, he has emphasised that his substantive offending, being of course the convictions for money laundering under s 400.9(1) of the Criminal Code Act1995 (Cth), are purely offences relating to dishonesty. It is therefore contended on his behalf that, in undertaking the assessment of the nature of the harm as required by this subparagraph of Direction 99, it is difficult to assess the exact impact the dealing with money reasonably suspected to be the proceeds of crime had on any particular individual or society more generally. It was also quite properly contended on behalf of the applicant that it was not established on the facts that the money comprised in each of the dealings upon which the applicant was convicted were in fact the proceeds of crime. This is acknowledged. The applicant submitted that probably and best it could be said that repeat offending of this type would potentially lead to the facilitating or increasing the risk of other criminal activity, the precise nature of such criminal activity not being specified.
The respondent contended, on the other hand, that were the applicant to reoffend, presumably by carrying out similar money laundering offences in breach of s 400.9(1) of the Criminal Code Act1995 (Cth), there is a risk of direct harm to the community in the form of financial loss and psychological harm. It is also submitted on behalf of the respondent that there is a risk of indirect harm in that the offending could facilitate other offending, which might result in physical harm to members of the Australian community.
Assessing the nature of the harm to individuals or the Australian community should such further money laundering offences in breach of s 400.9(1) of the Criminal Code Act1995 (Cth) be committed by the applicant, does involve to some extent, a degree of speculation. In undertaking this task, the Tribunal considers the guidance given in the decisions referred to above in Majeed v The Queen and R v Jiao do offer some assistance. Money laundering is a great enabler and facilitator of significant organised crime. It is their lifeline. This is in particular within the province of drug trafficking and tobacco smuggling syndicates. Ultimately organised crime syndicates, whatever element of criminality they pursue, do so motivated by greed and a desire for profit. The conduct of these syndicates has significant adverse public interest outcomes.
Another by-product of the activities of drug trafficking syndicates fuelled by the vast profits potentially to be made in undertaking such activities, particularly in the context of money laundering, is the growth of gangland ‘turf wars’ that have become a feature of criminal life, particularly in Melbourne and Sydney over quite some years. A result of these ‘turf wars’ has been an unacceptable level of underworld killings and shootings, not to mention other acts of violence such as bashings, home invasions, standover tactics and arson.
In the case of illegal drugs and tobacco trafficking syndicates, there are the almost inevitable adverse public health outcomes which arise due to people taking drugs and smoking. Ultimately, the hospital, healthcare, ambulance, social welfare, public housing, policing, courts and corrections systems, amongst others, all ultimately funded by the taxpayer, are relied upon to address the various issues that arise from people taking illegal drugs and/or smoking. If one needed to be reminded of harm of this nature arising from the trafficking of illicit drugs, it occurred in the context of the unfortunate events that took place on the weekend of 6 January 2024 at a ‘rave party’ conducted at Flemington Racecourse in Melbourne. On that occasion eight people became critically ill from taking drugs. Seven of them required treatment in intensive care wards of major hospitals. To treat them required a massive diversion of medical and ambulance resources. Representatives of the Victorian Ambulance Service and the Ambulance Unions emphasised the extreme strain those events placed upon the Melbourne ambulance network on that night. It is clearly a harm to the Australian community caused by the trafficking in drugs. One also has to pose the question what would have happened if, for instance, a decent law-abiding taxpayer suffered a coronary or cerebral event that required urgent ambulance and intensive care attention on that night? It could well have been the difference between life and death.
Another harm to the Australian community that arises from money laundering is in the context of the revenue. Almost inevitably, the money is income earned upon which no tax is paid. The avoidance of taxation revenue as a result of money laundering is a significant harm to the Australian community.
The likelihood of the applicant engaging in further criminal conduct
The applicant relies upon several grounds to invite the Tribunal to reach the conclusion that the risk of him reoffending is low or otherwise ‘acceptable’. Several factors are relied upon by him:
(a)The unique circumstances under which he says the offending occurred.
(b)The remote and/or abstract levels of actual harm that any repeat offending may cause.
(c)The lack of further recidivism on his part.
(d)That he is now older and wiser, with a significant insight and remorse. It should not be lost sight of that the applicant was 29 years old at the time of his offending. The Tribunal is satisfied that he was comparatively immature at that time.
(e)That he has significant motivation to avoid reoffending, including the health and well-being of his son.
(f)That there are supports available to him in the form of family and community support with supervision if he is released.
(g)The low risk of reoffending assessed by Ms Ferrari in her report.
(h)The observations of the sentencing Judge in the County Court concerning the applicant’s prospects of rehabilitation and being a low risk of reoffending.
The Tribunal accepts that these contentions articulated in the previous paragraph on behalf of the applicant are indicative of and do provide an appropriate platform, amongst others, to conclude that the applicant is at a relatively low risk of reoffending. Further matters and a broader consideration of these contentions will be explored hereunder.

In the section concerning how separation would specifically affect the applicant’s son, Ms Wong stated such separation can be incredibly stressful and emotionally painful for children. Ms Wong stated, as reported and directly observed by the applicant’s partner, has already been evident because the son has asked about his father’s whereabouts and commented that he is unable to play with his father whilst he has seen other friends doing so. She also stated that a parent-child separation which is prolonged can exhaust a child’s body and brains, placing the child on an adverse developmental trajectory. In this setting, prolonged separation can be highly traumatic to a child such as the applicant’s son. Finally, she stated that if there were a separation, family relationships and connections experienced by the son would be significantly disrupted with a concomitant impact on his development which would be negative.
Ms Ferrari and sections of her report relied upon by the applicant addressed the likely effect that any separation from the applicant would have on his son.[36] To some considerable extent, her opinions were similar to those of Mr Armstrong and Ms Wong. Indeed, in the witness box, Ms Ferrari said that there were no inconsistencies between her report and that of Ms Wong. The Tribunal agrees. She observed that if the applicant does not maintain a stable ongoing relationship with his son in his formative years, given that there already has been disruption and in the light of him suffering from ASD, there are likely to be adverse long-standing effects that would carry into his adulthood. In the witness box she confirmed that the applicant plays an important role in his son’s life. There would be, she said, difficulties in behaviour with the son. He would quite likely adopt a theme of rejection or abandonment. She emphasised that there is a stark difference to so many parents she had assessed in her career, who maintain some contact with their children but in reality, have limited engagement. A corollary of this was also said by her from the witness box to be that the applicant’s primary concern for his son was a primary mitigating factor why he is unlikely to reoffend. She also stated that the birth of his son was a stabilising factor.
[36] Specific reference was made to paragraphs 163 to 167 of Ms Ferrari's report. They are referred to in their entirety.
Expanding on this opinion, Ms Ferrari referred to research that she stated demonstrated the adverse, long-term effects of deportation of a parent on children. It is considered that those children without parental figures ‘are more likely to experience diminished self-concept; compromised physical and emotional security; a sense of rejection and abandonment which is likely to impact future relationship choices; and a perpetual struggle with their emotions; behavioural and social adjustment problems; truancy and poor academic performance; externalised behaviours; psychosomatic symptoms; and mental health issues.’ Her opinion was that for a child such as the applicant’s son, who has the pre-existing ASD condition, such effects would be compounded. ASD, she also observed, requires routine, stability and predictability. There are well-established negative effects if there are disruptions to a routine caused by a separation from a parent figure. This, to some extent, she observed can be of further disruption to his son’s attachment, predictability, stability, and security, at a time where he is now of an age where he has a greater understanding and experience of the impacts of a separation. His greater understanding and experience of such impacts are therefore likely to have greater consequences for his emotional, behavioural, and psychosocial functioning.
Another factor relevant to this primary consideration raised by Ms Ferrari in her evidence from the witness box was to emphasise that for the applicant’s partner, if the applicant were to be returned to China, there would be a burden on her as a single parent. She opined it would be a significant burden on her which would weigh heavily. Additionally, it would put pressure on her to work full time. Raising their son in such a setting would also be detrimental to him. These opinions expressed by Ms Ferrari seem to the Tribunal to be logical and rational. They are opinions quite easily accepted by the Tribunal. There is much sense in them.
The respondent, in addressing this primary consideration, adopted several approaches. It was contended on behalf of the respondent that it was possible that the applicant’s son may return to China to be with the applicant in the event that the mandatory cancellation of the visa is not revoked. The Tribunal considers this prospect to be highly unlikely in the light of the evidence that was given to it at the hearing of the application. Both the applicant and his partner emphasised that their son has now been accepted as an enrolled student at a prestigious private school in 2024. Understandably, they want the best education for him. Therefore, if the applicant were to return to China, the realities are that his son would stay in Australia to be educated at the prestigious private school and contact between them would, of necessity, be limited. This also needs to be viewed with a degree of realism. The son has particular mental health and learning difficulties which, it is more probable than not, would be better addressed in Australia than in China.
Another contention on the part of the respondent relied upon to invite the Tribunal to limit the weight that might otherwise be attached to this primary consideration arises due to the relatively limited time that the applicant has spent with his son since his birth. The Tribunal acknowledges that for several reasons that have been previously explained, both due to the son’s travelling to China and remaining there for some years, together with the applicant’s imprisonment, there has been somewhat limited contact. However, for the reasons articulated above, the Tribunal accepts the evidence of the applicant, his partner, not to mention Ms Ferrari and Mr Armstrong that the father-son bond between them is strong. This was also apparent to the Tribunal when the son was present in the precincts of the Tribunal hearing room with his father, as noted earlier. Therefore, the Tribunal does not accept this contention on behalf of the respondent.
Having considered all of the material concerning this primary consideration, particularly the expert evidence before the Tribunal, which demonstrates that the applicant’s son does have a medical condition and special needs, it concludes that this primary consideration must weigh very heavily in favour of revocation of the mandatory cancellation of the visa.
Whilst it is true that in this day and age of the internet, it would be open for the applicant to maintain contact with his son via electronic means such as a video link, the realities are that there is no substitute for in-person contact with the child living under the one roof with their parents.
Having considered all of the evidence relevant to this primary consideration, as articulated above, the Tribunal concludes that very heavy weight must be attached to it in favour of revocation of the mandatory cancellation of the visa.
PRIMARY CONSIDERATION 8.5 OF DIRECTION 99 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5 of Direction 99, ‘Expectations of the Australian Community’, provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being a party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
This primary consideration and its application have been the subject of much judicial comment over several years. Mortimer J in YNQY v Minister for Immigration and Border Protection has provided guidance as to its application.[37] The judge observed:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[37] [2017] FCA 1466, 27-8 [76].
The expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not as an independent assessment conducted by the Tribunal. An examination of the language used in this primary consideration of Direction 99 reveals that the assessment of community values are expressed as norms.
The respondent contends that this primary consideration prescribes a deemed expectation of the Australian community and that the question for the Tribunal is what weight to attach to such expectation or expectations.
It is further contended by the respondent that the Tribunal in undertaking this task should consider that the applicant has engaged in serious criminal offending, and further it ought not be satisfied that the applicant does not pose an ongoing risk to the community. Therefore, significant weight should be attached by the Tribunal against revocation of the mandatory cancellation of the visa.
The applicant, and submissions lodged on his behalf concerning this primary consideration touched upon the question of whether this paragraph of Direction 99 is lawful.[38] The Tribunal considers that in the absence of a finding by a Court that the paragraph is unlawful, it has no option but to apply it.
[38] Paragraphs [90] to [96] of the applicant's Statement of Facts, Issues and Contentions of 12 December 2023 are referred to.
To this extent, the parties were largely in agreement that the real issue for the Tribunal with respect to this primary consideration is the question of the weight to be attached to it.
Reference was made by the applicant to a passage of the decision of Beach J in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[39] It is worthwhile reproducing that passage:
FYBR establishes that the community expectations consideration does not incorporate all the countervailing factors from the person’s specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give community expectations.
[39] [2022] FCA 396, 19 [97] (‘Kelly’).
A number of the factors that have already been considered by the Tribunal concerning other primary considerations assume significance also for the purposes of determining the weight to attach to this primary consideration.
The Tribunal concludes that comparatively limited weight should, in this matter, be attached to this primary consideration. There are several reasons, or to adopt the words of Beach J in Kelly, ‘countervailing factors’ giving rise to this conclusion.
Firstly, the applicant’s offending is one of a unique species of offences where no criminal intent, or as referred to by lawyers, ‘mens rea’ need be proved by the prosecution.
Secondly, although the Tribunal has found the applicant’s offending to be serious, he otherwise does not have a particularly lengthy history of criminal offending. He offended when he was only 29 years of age and has unquestionably matured and as was submitted, is older and wiser. His son has been born since he offended, and he has a powerful reason because of the presence of his son and the support of his partner, not to offend in the future.
Thirdly, his offending does not involve crimes of violence, family violence or offences against government officials or officers.
Fourthly, for the reasons that have been articulated in some detail previously, the Tribunal concludes that the applicant is a low risk of reoffending. This conclusion is supported by the findings of the sentencing Judge in the County Court of Victoria, together with the expert evidence from both Ms Ferrari and Mr Armstrong. The Tribunal has also expressed its views about the evidence of the applicant, both in terms of gaining an insight into his offending, and the heightened sense of awareness that he has to invoke preventative strategies in the future so as to avoid any further offending.
Fifthly, there was considerable evidence of the steps he has undertaken towards rehabilitation.
Sixthly, the applicant has strong personal ties to Australia with his partner, an Australian permanent resident, and his son, an Australian citizen. He has lived for almost all of his adult life in Australia. His son has certain health challenges and special educational needs. If the applicant is to return to China, there will be a significant detrimental effect on his son.
Seventhly, significant credit must be given to the applicant when applying this primary consideration for the contribution that he has made to Australia with his business endeavours and the community generally, which was attested to by some of the lay witnesses who gave evidence at the hearing of this application. The significant circle of both social and business contacts that he has made also buttresses this finding.
Eighthly, although the Tribunal does not place too much emphasis on this fact, nonetheless, the applicant has been punished and also had to endure an inordinate delay between being charged and the final disposition of the matters in the County Court which resulted in his imprisonment. He has served his term and endured additional time in immigration detention.
By reason of the foregoing matters the Tribunal places very limited weight on this primary consideration against revocation of the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
Paragraph 9(1) of Direction 99 provides as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims;
(d) impact on Australian business interests.
Paragraph 9.1 of Direction 99 – Legal consequences of the decision
Paragraph 9.1 of Direction 99, ‘Legal consequences of decision under section 501 or 501CA’, provides as follows:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
Paragraph 9.1.2, ‘Non-citizens not covered by a protection finding’, states as follows:
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

The applicant, who was represented by a legal practitioner, did not make any submissions to the Tribunal concerning this primary consideration with respect to the legal consequences of the reviewable decision. Therefore, no weight will be attached to this other consideration.
Paragraph 9.2 of Direction 99 – Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 provides:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
As noted earlier, the applicant is presently 36 years of age, having been born in November 1987. He is apparently in good physical health. There was no evidence to the contrary concerning this issue.
There does not appear to be any evidence to suggest that there are language barriers.
He is, as observed earlier in these reasons, a highly intelligent, well-educated individual with a sharply honed sense of business acumen and is able to protect his own interests. The Tribunal considers that these attributes would, to a significant degree, equip him to be able to re-establish himself in China were he to return there. Indeed, a significant theme throughout much of the material lodged, both with the delegate, and the Tribunal in support of this application, both generated by him, professional witnesses and personal references, was his capacity for free enterprise entrepreneurship and what is frequently referred to as having the hallmarks of a ‘self-starter’. It is acknowledged that the applicant would probably find a return to China not to his liking, but more probably than not he is one who would resolve to overcome such an adversity to the maximum possible extent. Insofar as the evidence of the applicant and his witnesses, both lay and professional, was to the contrary, the Tribunal is unable to accept it.
Further, there was limited evidence concerning medical and/or economic support that would be available to the applicant were he to return to the People’s Republic of China. The main evidence touching on this question came from Ms Ferrari. She reiterated from the witness box the observations identified in her report concerning the availability of mental health treatment in China. In her report Ms Ferrari recorded that as a result of her assessment of the applicant, she diagnosed him as having developed Generalised Anxiety Disorder (GAD), Post-Traumatic Stress Disorder (PTSD), together with a Dependent Personality Disorder. The effects of these conditions on someone suffering from them, such as the applicant, were explained by her. Amongst other things, she explained the negative effects of PTSD and GAD can include ‘altered cognition and behaviour, impairing the ability to rationalise, consider alternative responses and impact decision-making.’ Ms Ferrari stated in evidence, and her report, that the availability of mental health treatment in China is limited as mental health is not widely accepted or supported, and therefore the applicant’s conditions would be likely to worsen. Accordingly, such treatable mental health conditions that she has diagnosed are likely to continue to deteriorate and remain untreated. When probed by the Tribunal about the source of her knowledge of this fact, she said it was quite well explained in appropriate literature and relatively well known amongst experienced phycologists.
The respondent readily conceded than if the applicant’s immediate family were to remain in Australia, he would at the very least experience some emotional hardship due to the separation and what were acknowledged to be practical difficulties in re-establishing his life in China, having lived in Australia for the length of time that he has.
However, the applicant contends that there are ‘numerous further relevant considerations for the Tribunal’. In support of this contention reference is made to the report of Ms Ferrari of 8 December 2023, and in particular the section headed ‘Risk Factors Associated with Deportation.’[40]
[40] The relevant paragraphs of Ms Ferrari's report are from 156-168.
Ms Ferrari, who was requested by the applicant’s solicitor to prepare a report following a letter of instruction received by her from them dated 21 November 2023, together with attachments, conducted an assessment of the applicant on 23 November 2023. She informed the Tribunal that the letter of instruction did not contain any specific questions for her to address, or respond to, nor was she advised to make or adopt any assumptions for the purposes of conducting her assessment of the applicant or the preparation of her report.
Several factors were recorded by Ms Ferrari, after being instructed by the applicant in the assessment, that she asserts would constitute an impediment within the meaning of the relevant paragraph of Direction 99 were the applicant to be returned to China.
She commenced by emphasising the fact that the applicant has not resided in China since 2009 and has no relevant work experience in that country as he was a student at the time of his departure for Australia to undertake full-time studies. Further emphasis was placed by her on the fact that the applicant has a lack of contacts and networks in China, particularly when compared to the social and business connections that he has been able to develop over the years that he has worked and studied in Australia.
By way of contrast, she repeated that due to the applicant’s absence from China since 2009, his professional connections, together with any familiarity with the current employment landscape, must, of necessity, be limited. Additionally, she recorded the applicant informing her that his friends that he maintains in China have advised him that there is a common trend or preference in that country for employing new graduates born after 1990. This, in essence, constitutes a significant barrier to his capacity to find gainful employment were he to return, notwithstanding his significant tertiary qualifications obtained in Australia. In short, he has no practical experience with the Chinese employment market in current times.
Again, Ms Ferrari, during her assessment of the applicant, recorded that he informed her he has some friendships from his high school days in China. However, the level of such connection is limited superficial and needs to be viewed with some degree of reality given that he left China at the age of 20. A further barrier to a successful or realistic return to China, she contends, are the fact that the applicant has no close family supports in that country, bearing in mind that his parents now reside in Australia and wish to remain in this country permanently. This being due to their advancing years and that their only grandson is an Australian citizen. The applicant also informed Ms Ferrari he has no relationship with his paternal family given these grandparents have since passed away. There are some maternal aunts, but he has had next to no contact with them for many years. Relying on these facts, he contends that his support system in China, were he to return to that country, would be minimal at best. In response to a question asked of him, the applicant stated he could not resort to his grandmother in China for financial support. She is currently residing at an old age home and is of advancing years.
Ms Ferrari, in the section of her report, repeated that the applicant exhibited to her symptoms of anxiety, depression and mild to moderate PTSD. In her professional opinion, such symptoms would become heightened (the Tribunal infers by use of the term ‘heightened’ that such mental health conditions would be likely to deteriorate) were he to return to China in the event that the mandatory cancellation of his visa was not revoked.
In the section of Ms Ferrari’s report headed ‘Recommendations’, she opines that on the basis that the applicant currently meets criteria for GAD and PTSD with associated symptoms of depression, the applicant’s ‘current circumstances’ (presumably relating to these disorders of the mind that she has diagnosed, although she does not specifically say so), after 4 years 9 months incarceration and ‘persistent uncertainty regarding his future’ have caused a deterioration in the applicant’s mental health conditions.
Surprisingly, she, in the same section of her report, makes the rather robust contention that if this application is successful, ‘[i]t is likely that his symptoms will begin to mitigate spontaneously … and he will be able to continue rebuilding his life to restore his premorbid functioning and begin to enjoy being a father to his young son’.
There are several aspects of Ms Ferrari’s conclusions and opinions expressed in her report that are of concern to the Tribunal with respect to assessing the application of this consideration and the weight to attach to it.
Working backwards, the Tribunal is puzzled, if not concerned, with the suggestion that if this application is successful the applicant’s symptoms will mitigate spontaneously. There are several reasons for this concern. The mental illnesses that Ms Ferrari has diagnosed the applicant from suffering are very serious health issues. Almost invariably, people who develop these conditions require careful treatment and management of them. Frequently, this management and treatment must be conducted over a significant time span with the input from consultant psychiatrists, who frequently prescribe appropriate medication, which sometimes requires significant experimentation and adjustment to provide the right patient outcome, together with additional sessions, if necessary, with a psychologist on a regular basis. Ms Ferrari, in her report, does not offer any explanation as to why there would be a spontaneous improvement in the applicant’s mental health conditions were the mandatory cancellation of his visa to be revoked. She does not, in the report, recommend that the applicant undergo a treatment program, as noted earlier in these reasons, with a consultant psychiatrist, including the prescribing of appropriate medication, and sessions with a psychologist. This question was put to Ms Ferrari when she was in the witness box, and when pressed by the Tribunal conceded, to her credit, that if the applicant is released into the community, he should attend his GP every so often for the first few months and have a review with a psychologist or psychiatrist to see if his symptoms start to subside. She said it would be beneficial. Additionally, she opined that she did not think that the applicant suffers from what she described as ‘an endogenous depression’ and therefore believes that his conditions would resolve themselves. This would occur if he were released into the community and returns to his family.
Overall, the Tribunal considers that the weight to be attached to this consideration is in favour of revocation of the mandatory cancellation of the visa. The applicant has been in Australia for many years and has firmly established himself here. There is the question of access to mental health treatment should he need it. One is also mindful of the apparent prejudice in favour of younger applicants when considering applicants for employment. Moderate weight is attached by the Tribunal to this other consideration in favour of revocation of the mandatory cancellation of the visa.
Paragraph 9.3 of Direction 99 – Impact on victims
No evidence was placed before the Tribunal concerning the impact of the s 501CA decision on victims of the applicant’s offending. Therefore, no weight will be placed on this other consideration.
Paragraph 9.4 of Direction 99 – Impact on Australian business interests
There was some debate between the parties about the construction and application of this other consideration. The respondent highlights the language used in this paragraph of Direction 99 which states, amongst other things, that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia. Therefore, no weight should be given to this other consideration.
The applicant, on the other hand, submits that this is too narrow a construction and that the actual words used in the paragraph confer on the Tribunal, as decision-maker, the discretion to consider other business interests if it is appropriate to do so.
The applicant points to the significant business interests that the applicant has in Australia, particularly highlighting that he employs several people, has entered into commercial leases and other commercial contracts which could be in jeopardy, or come to an end if he is no longer in Australia. Additionally, he emphasises, as has been canvassed in considerable detail earlier in these reasons, that he has established several new businesses which, in addition to employing people, contribute to the economic activity of the nation. There is considerable force in this contention.
Several other witnesses, mostly by witness statement, gave further evidence, which was before the Tribunal, and has been considered to be relevant to this consideration. They were Mr Hamilton, a real estate agent, who gave a statement concerning the applicant’s property development activities, Mr Zhai, the manager of the Chopstick Delight Chinese restaurant, Mr Tan, an accountant, and Ms Chen, a conveyancer.
The Tribunal has already acknowledged the impact on Australian business interests if the applicant were to return to China in the event that the mandatory cancellation of the visa is not revoked. It is considered that this impact has been more appropriately addressed in the Tribunal’s analysis of, amongst other things, the strength, nature and duration of the applicant’s ties to Australia. Appropriate and significant weight by reason of this impact and the applicant’s contribution to the Australian economy and community by reason of these business interests has been allocated. Accordingly, the Tribunal will not separately attach weight to this other consideration.
CONCLUSION
Under paragraph 8.1.1 – the nature and seriousness of the applicant’s offending – the Tribunal has attached significant weight against revocation of the mandatory cancellation of the visa.
Concerning paragraph 8.1.2 – risk to the Australian community should the applicant reoffend – the Tribunal has attached limited weight against revocation of the mandatory cancellation of the visa.
With respect to paragraph 8.3 – the strength nature and duration of ties to Australia – the Tribunal has concluded that this primary consideration weighs very heavily in favour of revocation of the mandatory cancellation of the visa.
Concerning paragraph 8.4 – best interests of minor children in Australian – very heavy weight has been attached by the Tribunal to this primary consideration in favour of revocation of the mandatory cancellation of the visa.
Under paragraph 8.5 – expectations of the Australian community – on this occasion the Tribunal, for the reasons, articulated places very limited weight on this primary consideration against revocation of the mandatory cancellation of the visa.
Paragraph 9.2 – extent of impediments if removed – for the reasons also articulated with respect to this other consideration, the Tribunal attaches moderate weight in favour of revocation of the mandatory cancellation of the visa.
From the foregoing analysis, it can be seen that the weight the Tribunal has chosen to attach to primary considerations 8.3, 8.4 and 9.2 outweigh the other considerations against revocation of the mandatory cancellation of the visa. In particular, the Tribunal wishes to emphasise that its conclusions concerning the risks of the applicant reoffending, which it concludes is low, together with the quite unique fact situation in this case, which leads to limited weight being attached to the primary consideration of the expectations of the Australian community, are such that the heavy weight attached to the primary considerations of strength, nature and duration of ties to Australia, the best interests of minor children in Australia, and the moderate weight attached to the other consideration, being the extent of impediments if the applicant were removed to China, must prevail.
By way of completion, the Tribunal wishes to emphasise that these findings should not be seen as any criticism of the decision of the delegate. The delegate did not have the benefit of two days of evidence, the opportunity to observe the applicant and his wife in the witness box over some time, the other witnesses, cross-examination, together with extensive submissions, both oral and written.
DECISION
By reason of the foregoing matters, the Tribunal is satisfied there is another reason why the mandatory cancellation of the applicant’s visa should be revoked.
Accordingly, the correct and preferable decision is that the reviewable decision will be set aside, and, in substitution, that the mandatory cancellation of the visa will be revoked.

246. I certify that the preceding 245 (two hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.........................[SGD]........................
Associate
Dated: 24 January 2024

Dates of hearing: 11 and 12 January 2024

Counsel for the Applicant:

Solicitors for the Applicant:

Advocate for the Respondent:

Mr Bryn Overend

AR LAW Services

Mr Anthony Gardner

Solicitors for the Respondent: Mills Oakley Lawyers